UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CEMONE ANTENETTE BYNUM

Plaintiff, No. 16-cv-1904 (EGS) v.

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Cemone Antenette Bynum (“Ms. Bynum”), an African-

American woman and employee of the District of Columbia’s

Department of Behavioral Health (“DBH”), brings this lawsuit

against the District of Columbia (the “District”) and DBH under

Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C.

§ 2000e, et seq., and the Americans with Disabilities Act of

1990 (“ADA”),

, et seq., claiming that she was

harassed and retaliated against for reporting her male

colleague’s behavior. Ms. Bynum also alleges that DBH unlawfully

refused to accommodate her disabilities by denying her requests

to transfer to an appropriate program area.

Pending before the Court are Ms. Bynum’s objections to

Magistrate Judge Robin M. Meriweather’s Report and

Recommendation (“R & R”), which recommends that this Court

dismiss without prejudice Counts II and IV of the First Amended Complaint. See R & R, ECF No. 20 at 13. 1 Raising no objections to

the R & R, the District asks this Court to adopt the R & R in

its entirety. Upon careful consideration of the R & R,

Ms. Bynum’s objections, the District’s response, and the

relevant law, the Court concludes that Ms. Bynum sufficiently

alleges a retaliation claim under Title VII (Count II), and

Ms. Bynum plausibly states a hostile work environment claim

under Title VII (Count IV). Therefore, the Court ADOPTS IN PART

and REJECTS IN PART the R & R, GRANTS IN PART and DENIES IN PART

the District’s Partial Motion to Dismiss, and DISMISSES WITHOUT

PREJUDICE Ms. Bynum’s retaliation claim under the ADA. Because

DBH is a non sui juris entity that lacks the capacity to sue or

be sued, the Court DISMISSES WITH PREJUDICE Ms. Bynum’s claims

against DBH.

I. Background

The factual background and procedural history in this case

are set forth in the R & R. See R & R, ECF No. 20 at 2-4. 2 To

briefly summarize, in 2005, the District hired Ms. Bynum, an

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 The Court accepts as true the allegations in the operative complaint for purposes of deciding this motion, and construes them in Ms. Bynum’s favor. See Baird v. Gotbaum,

, 169 n.2 (D.C. Cir. 2015). Ms. Bynum does not object to Magistrate Judge Meriweather’s recitation of the alleged facts. See Pl.’s Objs., ECF No. 22 at 1-3. 2 African-American female, as DBH’s Data Management Specialist.

First Am. Compl. (“FAC”), ECF No. 14 at 3 ¶ 6, 4 ¶¶ 19-20. She

later assumed a new role.

at 4 ¶ 21. At all relevant times,

Ms. Bynum was employed at DBH as a Project and Data Management

Specialist.

Ms. Bynum was diagnosed with anxiety disorder

and major depression disorder in 2011, and then post-traumatic

stress disorder in 2014.

at 3 ¶¶ 8-10. DBH was aware of

Ms. Bynum’s disabilities.

at 3 ¶ 13.

Between 2012 and 2015, Ms. Bynum filed complaints against

her employer with the Equal Employment Opportunity Commission

(“EEOC”), the District’s Office of Human Rights (“OHR”), and

DBH’s manager of equal employment opportunity (“EEO”), alleging

age and racial discrimination.

at 4 ¶¶ 24-27. The parties

settled her EEOC complaint alleging age discrimination in 2012,

and OHR rendered its decision in 2015 regarding Ms. Bynum’s

racial discrimination complaint.

at 4 ¶ 25. Following those

events, DBH isolated Ms. Bynum, excluded her from team projects,

denied her opportunities to work on assignments, and refused to

promote her several times.

at 4-5 ¶¶ 29-32.

While at work on Tuesday, March 29, 2016, Ms. Bynum and

approximately five other individuals attended a meeting for

DBH’s Mental Health Statistics Improvement Program.

at 5 ¶¶

33, 35. At some point, Ms. Bynum, her supervisor, and her male

colleague were the remaining three attendees in the meeting.

3 at 5 ¶¶ 35, 37, 40. The male colleague, Colin Billett

(“Mr. Billett”), was responsible for reviewing and approving

invoices that were submitted by contractors to DBH.

at 5 ¶

39. 3 After Ms. Bynum explained to Mr. Billett that certain

invoices he had submitted were improperly filled out,

at 5 ¶

41, “[Mr.] Billett suddenly bolted out of his chair, causing his

chair to violently hit the wall behind him,”

at 5 ¶ 43, and

he “stood over [Ms. Bynum], pointed his finger at her, and

shouted ‘I’m sick of you,’”

at 5 ¶ 44. Mr. Billett also

shouted that “you are immature, you are childish, and stupid,”

at 5 ¶ 45, and “you need to go back to the South where you

came from,”

at 5 ¶ 46.

Mr. Billett repeated those “epithets several times” during

the incident,

at 5 ¶ 47, and he started to approach

Ms. Bynum as she was sitting in her chair before he began pacing

back and forth around the room,

at 5-6 ¶¶ 48-50. Ms. Bynum’s

supervisor, Dr. Denise Wright, Ph.D., did not intervene in the

incident, which lasted more than ten minutes, and Dr. Wright

instructed Ms. Bynum to refrain from calling the police.

at

6 ¶¶ 54-55, 58. Another employee entered the room and removed

3 As noted in the R & R, the FAC refers to Ms. Bynum’s male colleague as “Colin Bissett” and “Colin Billett.” R & R, ECF No. 20 at 2 n.2; see also FAC, ECF No. 14 at 5 ¶¶ 37, 40. The Court assumes that “Colin Billett” is the correct spelling of Ms. Bynum’s male colleague because Ms. Bynum’s objections refer to him as “Colin Billett.” Pl.’s Objs., ECF No. 22 at 1. 4 Mr. Billett.

at 6 ¶ 56. Ms. Bynum feared for her safety,

suffering a panic attack and emotional distress as a result of

the incident.

at 6 ¶¶ 51-53. On or about March 29, 2016,

Ms. Bynum reported Mr. Billett’s “assault” to her supervisor.

at 10 ¶ 104. Ms. Bynum also submitted an incident report,

sought medical assistance, and returned to work on May 9, 2016.

at 6 ¶¶ 59, 61, 63.

When she returned to work, Ms. Bynum felt threatened by

Mr. Billett’s presence near her workspace,

at 6 ¶ 67, and

she reported to DBH the issue of Mr. Billett’s “unnecessary

contact” with her,

at 6 ¶ 68. DBH denied her requests to

transfer to an appropriate program area to avoid Mr. Billett.

at 7 ¶ 70. DBH refused to order Mr. Billett to not harass,

intimidate, or annoy Ms. Bynum.

at 7 ¶ 69. Without a

“business or employer related purpose,”

at 7 ¶ 76,

Mr. Billett continued to approach Ms. Bynum’s workspace,

at

7 ¶ 78.

On or about May 9, 2016, DBH issued a “Letter of Warning”

to Ms. Bynum, which was signed by Dr. Wright, stating that:

(1) Ms. Bynum’s conduct on the day of the incident failed to

comply with professional standards of conduct for the District’s

employees,

at 7 ¶ 80; (2) Ms. Bynum violated DBH’s workplace

violence prevention and response policy that prohibits

“assaultive, intimidating, or harassing behavior in the

5 workplace,”

at 7 ¶ 81; and (3) failure to comply with the

warning could result in disciplinary action, including

suspension or dismissal,

at 8 ¶ 87. The letter, however, did

not include Ms. Bynum’s alleged wrongdoing.

at 8 ¶ 84.

Based on these events, Ms. Bynum filed a charge of

discrimination against the District and DBH with the EEOC on May

9, 2016.

at 8 ¶ 92. On September 26, 2016, Ms. Bynum brought

Title VII and ADA claims against the District and DBH in this

Court. See generally Compl., ECF No. 1. On August 8, 2017, this

Court denied as moot the District’s motion to dismiss the

initial complaint in light of Ms. Bynum’s First Amended

Complaint, and granted DBH’s motion to dismiss in view of

Ms. Bynum’s lack of opposition. Min. Orders of Aug. 8, 2017.

Ms. Bynum’s First Amended Complaint asserts four claims against

the District and DBH: (1) denial of reasonable accommodation in

violation of ADA (“Count I”); (2) retaliation in violation of

Title VII (“Count II”); (3) retaliation in violation of Title

VII (“Count III”); and (4) harassment in violation of Title VII

(“Count IV”). FAC, ECF No. 14 at 9-14 ¶¶ 95-151.

On August 17, 2017, the District moved to dismiss Counts II

and IV of the operative complaint. See Def.’s Partial Mot. to

Dismiss, ECF No. 15. Ms. Bynum filed her opposition brief, see

Pl.’s Opp’n, ECF No. 17, and the District filed its reply brief,

see Def.’s Reply, ECF No. 19. Magistrate Judge Meriweather,

6 having been referred the District’s motion and this case for

full case management, issued the R & R on January 26, 2018. See

R & R, ECF No. 20; see also Min. Order of Aug. 8, 2017.

Ms. Bynum submitted objections to the R & R, and the District

responded to her objections. The objections are ripe and ready

for the Court’s adjudication.

II. Standard of Review

A. Objections to a Magistrate Judge’s R & R

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

A district court “may accept, reject or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3); see also

(b)(1) (“A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations

made by the magistrate judge.”). A district court “must

determine de novo any part of the magistrate judge’s disposition

that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

“If, however, the party makes only conclusory or general

objections, or simply reiterates his original arguments, the

Court reviews the [R & R] only for clear error.” Houlahan v.

Brown,

(D.D.C. 2013) (citation omitted).

Proper objections “shall specifically identify the portions

of the proposed findings and recommendations to which objection

7 is made and the basis for objection.” LCvR 72.3(b).

“[O]bjections which merely rehash an argument presented to and

considered by the magistrate judge are not ‘properly objected

to’ and are therefore not entitled to de novo review.” Shurtleff

v. EPA,

(D.D.C. 2013) (quoting Morgan v.

Astrue, No. 08-2133,

, at *3 (E.D. Pa. Oct. 30,

2009)).

B. Motion to Dismiss

“A Rule 12(b)(6) motion to dismiss tests the legal

sufficiency of a plaintiff’s complaint.” Herron v. Fannie Mae,

(D.C. Cir. 2017). “[T]he complaint is

construed liberally in the plaintiffs’ favor, and [courts] grant

plaintiffs the benefit of all inferences that can be derived

from the facts alleged.” Kowal v. MCI Comm’cns Corp.,

(D.C. Cir. 1994). However, the court is “not bound to

accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain,

(1986).

A complaint survives a motion under Rule 12(b)(6) only if

it “contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). A claim is facially

plausible “when the plaintiff pleads factual content that allows

the court to draw [a] reasonable inference that the defendant is

8 liable for the misconduct alleged.”

A complaint alleging

facts that are “‘merely consistent with’ a defendant’s liability

. . . ‘stops short of the line between possibility and

plausibility of entitlement to relief.’”

(quoting Twombly,

).

III. Analysis

The District advances two primary arguments for dismissal

of the retaliation claim (Count II) and the hostile work

environment claim (Count IV). See Def.’s Mem. of P. & A. in

Supp. of Def.’s Partial Mot. to Dismiss (“Def.’s Mem.”), ECF No.

15 at 5-7. First, Ms. Bynum fails to state a retaliation claim

because her report to her supervisor about Mr. Billett’s alleged

“assault” does not constitute protected activity under Title

VII, and “nothing in the Amended Complaint shows that the

alleged assault was linked to [Ms. Bynum’s] membership in a

protected class.” Id. at 6. Next, Ms. Bynum fails to state a

claim for harassment because she does not allege sufficient

facts that link the alleged harassment to her membership in a

protected class. Id. at 7. For the reasons explained below, the

Court rejects the recommendations in the R & R to dismiss the

retaliation and hostile work environment claims under Title VII.

Before turning to Ms. Bynum’s objections to the

recommendations in the R & R, the Court first addresses the

issue of whether DBH is a proper defendant in this case.

9 A. DBH Lacks the Capacity to Sue or Be Sued

Ms. Bynum sued both DBH and the District. Compl., ECF No. 1

at 3 ¶ 14. DBH moved to dismiss the department as a defendant on

the ground that DBH is non sui juris. See Def.’s Mot. to

Dismiss, ECF No. 7 at 1; see also Non Sui Juris, Black’s Law

Dictionary (11th ed. 2019) (Latin for “not of one’s own right”).

Because Ms. Bynum did not oppose the dismissal of DBH as a

party, see Pl.’s Opp’n, ECF No. 9 at 1, this Court granted DBH’s

motion, Min. Order of Aug. 8, 2018. Nonetheless, Ms. Bynum named

the District and DBH as defendants in the First Amended

Complaint. See FAC, ECF No. 14 at 3 ¶ 15 (“Defendant [DBH] is an

agency/subsidiary/division of the government of the District of

Columbia.”). The District argues—and Ms. Bynum does not dispute—

that DBH is not a proper defendant. See, e.g., Def.’s Mem., ECF

No. 15 at 3 n.2; Pl.’s Opp’n, ECF No. 17 at 1-11; Pl.’s Objs.,

ECF No. 22 at 3. The Court agrees.

DBH is a department of the District. See

-

1141.02(a). “[I]t is well-settled that a department or agency of

the District of Columbia cannot sue or be sued in its own name

in the absence of a statutory provision to that effect.”

Whitehead v. D.C. Child Support Servs. Div.,

(D.D.C. 2012); accord Hunt v. District of Columbia,

No. 02-7044,

, at *1 (D.C. Cir. Aug. 29,

2002) (per curiam) (“The district court correctly concluded that

10 appellee Metropolitan Police Department is non sui juris.”). The

Court therefore finds that DBH is a non sui juris entity that

cannot be sued in its own name. The District is the only proper

defendant in this case. Accordingly, the Court DISMISSES WITH

PREJUDICE DBH as a defendant.

B. Retaliation Claim

The Court next considers Ms. Bynum’s objections to the

R & R, which recommends that her retaliation claim be dismissed

on the ground that she fails to allege facts establishing or

supporting an inference that her incident report about

Mr. Billett’s conduct concerned discrimination based on her

race, color, religion, sex, or national origin. See R & R, ECF

No. 20 at 8; see also Pl.’s Objs., ECF No. 22 at 6-9.

Title VII “both prohibits employers from engaging in

employment practices that discriminate on the basis of race, see

42 U.S.C. § 2000e–2(a), and bars them from retaliating against

an employee ‘because [she] has opposed any [such] practice,’ id.

§ 2000e–3(a).” Harris v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2015) (citation omitted). “To establish a prima

facie case of retaliation, a plaintiff must show (1) that [she]

engaged in statutorily protected activity; (2) that [she]

suffered a materially adverse action by [her] employer; and

(3) that a causal link connects the two.” Cruz v. McAleenan,

, 1193–94 (D.C. Cir. 2019) (citation and internal

11 quotation marks omitted). “[A] plaintiff need not plead each

element of [her] prima facie retaliation case to survive a

motion to dismiss.” Jackson v. Dist. Hosp. Partners, L.P., No.

CV 18-1978 (ABJ),

, at *5 (D.D.C. Aug. 1, 2019).

As noted in the R & R, the District does not dispute that

Ms. Bynum has sufficiently alleged facts for the last two

elements of her retaliation claim. R & R, ECF No. 20 at 6 n.4.

The District concedes that Ms. Bynum alleges sufficient facts to

show that DBH took a materially adverse action against Ms. Bynum

when she complained to her supervisor about Mr. Billett’s

conduct. See, e.g., id.; Pl.’s Objs., ECF No. 22 at 6; Def.’s

Resp. to Pl.’s Objs. (“Def.’s Resp.”), ECF No. 24 at 2-3.

Indeed, DBH “issued [Ms. Bynum] a reprimand and a warning

letter” after she reported Mr. Billett’s conduct to her

supervisor. FAC, ECF No. 14 at 10 ¶ 106. And DBH “threatened

[Ms. Bynum] with sanctions including termination without

informing [her] of the alleged infractions,”

at 10-11 ¶ 114,

causing her “unwarranted stress and harm,”

at 11 ¶ 118. The

remaining issue is whether Ms. Bynum has alleged enough facts to

demonstrate the first element of her retaliation claim.

1. Ms. Bynum Has Pled Sufficient Facts That She Engaged in Protected Activity Under Title VII

Ms. Bynum alleges that, on the day of the incident at

issue, Mr. Billett stood over her, pointed his finger at her,

12 and shouted comments directed at her. See

at 5 ¶¶ 43-46.

Specifically, Mr. Billett shouted: (1) “I’m sick of you,”

at

5 ¶ 44; (2) “you are immature, you are childish, and stupid,”

at 5 ¶ 45; and (3) “you need to go back to the South where

you came from,”

at 5 ¶ 46 (emphasis added). Ms. Bynum

further alleges that “[Mr.] Billett repeated these epithets

several times.”

at 5 ¶ 47 (emphasis added). Mr. Billett made

these “epithets” in the presence of Ms. Bynum’s supervisor. See

at 5 ¶¶ 40-48, 6 ¶¶ 49-55, 11 ¶ 116. Dr. Wright did nothing,

at 6 ¶ 55, 10 ¶ 111, and Ms. Bynum remained in her chair

during the incident,

at 6 ¶ 50. At some point, Ms. Bynum

submitted an incident report,

at 6 ¶ 59, and she “reported

the assault by Mr. Billett against her to her supervisor,”

at 10 ¶ 104. According to Ms. Bynum, her “action in reporting

the attack on her by [Mr.] Billet[t] was a protected activity

under Title VII and the ADA,”

at 10 ¶ 105, and “[b]ut for

[Ms. Bynum’s] above-referenced protected activity of filing

complaints for alleged discrimination, [DBH] would not have

retaliated against [her],”

at 11 ¶ 121.

The District argues that Ms. Bynum’s incident report does

not qualify as “protected activity” under Title VII because

Ms. Bynum fails to link Mr. Billett’s alleged assault to her

membership in a protected class, and Ms. Bynum cannot show that

she was “opposing or making a charge of discrimination in

13 violation of Title VII.” Def.’s Mem., ECF No. 15 at 6; see also

Def.’s Reply, ECF No. 19 at 1-2. It is undisputed that

Ms. Bynum, an African-American woman, is a member of two

protected classes. See, e.g., Pl.’s Opp’n, ECF No. 17 at 10;

Def.’s Reply, ECF No. 19 at 1-3. The R & R states that Ms. Bynum

“suggests that the Court should infer that she engaged in

protected activity simply because she is an African American

woman.” R & R, ECF No. 20 at 8. Ms. Bynum argues that “the

threshold for oppositional conduct is not onerous” under Title

VII, Pl.’s Opp’n, ECF No. 17 at 10; and she points to her

“previous Title VII claim against her employer,”

Magistrate Judge Meriweather articulated three reasons for

why Ms. Bynum has failed to plead sufficient facts that she

engaged in protected activity. R & R, ECF No. 20 at 8-9. First,

“Ms. Bynum has failed to allege facts that establish or support

an inference that her report regarding the incident with

Mr. Billett concerned discrimination on the basis of her race,

color, religion, sex, or national origin.”

. Next,

Ms. Bynum “does not claim to have believed that Mr. Billett’s

conduct was discriminatory,”

(citing FAC, ECF No. 14 at 6 ¶

59), and she does not “allege any facts attributing

Mr. Billett’s conduct to her membership in a protected class in

Count II or elsewhere in the complaint,”

Finally, Ms. Bynum

“does not contend that [her] past complaints [of discrimination]

14 played any role in DBH’s decision to issue her the reprimand or

letter of warning.”

(citing Pl.’s Opp’n, ECF No. 17 at 10;

FAC, ECF No. 14 at 4 ¶¶ 24-27, 7-8 ¶¶ 79-90). Magistrate Judge

Meriweather recommends that this Court dismiss without prejudice

the retaliation claim under Title VII in Count II.

. 4

Ms. Bynum specifically objects to the R & R’s findings

that: (1) she fails to allege sufficient facts that support an

inference that her incident report regarding Mr. Billett’s

conduct concerned discrimination; and (2) she fails to allege

her belief that Mr. Billet’s conduct was discriminatory. Pl.’s

Objs., ECF No. 22 at 8-9. The Court will address each objection

in turn.

4 Magistrate Judge Meriweather found that Ms. Bynum failed to state a plausible retaliation claim under the ADA because the FAC “lacks any allegations indicating or supporting an inference that her complaint about Mr. Billet[t]’s conduct constituted protected activity under the ADA.” R & R, ECF No. 20 at 10; see also FAC, ECF No. 14 at 9-10 ¶¶ 102-122. Neither party objects to these findings, see, e.g., Pl.’s Objs., ECF No. 22 at 6-9; Def.’s Resp., ECF No. 24 at 2 n.1, and this Court agrees that Count II should be dismissed without prejudice to the extent Ms. Bynum asserts an ADA retaliation claim. Having found no clear error in this portion of the R & R, the Court therefore ADOPTS Magistrate Judge Meriweather’s recommendation, and DISMISSES WITHOUT PREJUDICE Ms. Bynum’s ADA retaliation claim in Count II. 15 a. The Court Reasonably Infers from Mr. Billett’s Alleged Epithets That Ms. Bynum’s Incident Report Constitutes Protected Activity

Ms. Bynum has alleged sufficient facts for the Court to

reasonably infer that DBH retaliated against her because she

engaged in statutorily protected activity. See Iqbal,

; see also Twombly,

. Ms. Bynum argues—and

the Court agrees—that this Court can draw a reasonable inference

that Mr. Billett’s comment—“you need to go back to the South

where you came from,” FAC, ECF No. 14 at 5 ¶ 46—was a “racially

tinged” comment given the historical context of the phrase.

Pl.’s Objs., ECF No. 22 at 8. Ms. Bynum refers to the peculiar

institution of slavery that stains our nation’s history and the

well-documented plight of African-Americans in migrating from

the Jim Crow South to Northern cities in hopes of a better life.

Id. at 6-8. Ms. Bynum argues that “the cat call ‘go back to the

South’ is a racially tinged slur that conjures images of pitiful

African American refugees forced out of the South,” id. at 8,

and “the term ‘South’ is a thinly veiled reference to ignorant,

poor African Americans who are also referred to as ‘Field

Nig[**]s,’” id. at 6-7.

The District responds that Ms. Bynum’s objections are

“riddled with histrionics and irrelevant facts that are

unsupported by the record.” Def.’s Resp., ECF No. 24 at 2. The

16 District contends that Mr. Billett’s phrase—“go back to the

South where you came from”—cannot save Ms. Bynum’s retaliation

claim because it is not included in Count II, and Ms. Bynum did

not raise that argument in her opposition brief. Id. at 3. And

the District argues that Ms. Bynum fails to allege that

Mr. Billett’s “comment was related to her membership in a

protected class or that she complained about it.” Id.; see also

Def.’s Mem., ECF No. 15 at 6.

But Count II “adopts and incorporates all of the forgoing

allegations into [the Title VII retaliation] claim,” FAC, ECF

No. 14 at 9 ¶ 102, including the allegations in the “Facts

Common to All Claims” section, see id. at 3-8 ¶¶ 19-94, 9-11 ¶¶

102-122. At the motion to dismiss stage, the Court must construe

the operative complaint liberally in Ms. Bynum’s favor, view the

factual allegations therein as a whole, accept them as true, and

grant her the benefit of all inferences that can be derived from

the alleged facts. See Kowal,

. Contrary to the

District’s assertion, Ms. Bynum’s position is supported by

Supreme Court precedent. See Ash v. Tyson Foods, Inc.,

(2006) (per curiam) (explaining that a white manager’s

use of the word “boy” to refer to African-American employees can

be evidence of racial animus).

In Ash v. Tyson Foods, Inc., two African-American men

worked as superintendents at a poultry plant, and they sought

17 promotions.

. The white plant manager selected two

white males for the vacancies.

The petitioners asserted,

inter alia, Title VII claims, alleging that the defendant-

corporation discriminated against them based on their race.

The Supreme Court noted that “there was evidence that [the]

plant manager, who made the disputed hiring decisions, had

referred on some occasions to each of the petitioners as ‘boy.’”

. The petitioners argued that the use of “boy” was

evidence of discriminatory animus.

In holding that the use

of the term “boy” may give rise to an inference of racial animus

under certain circumstances, the Supreme Court reasoned that

“[a]lthough it is true the disputed word will not always be

evidence of racial animus, it does not follow that the term,

standing alone, is always benign. The speaker’s meaning may

depend on various factors including context, inflection, tone of

voice, local custom, and historical usage.”

Here, Mr. Billett made a series of comments to Ms. Bynum,

an African-American woman, and she alleges that “[Mr.] Billett

repeated [those] epithets several times,”

at 5 ¶ 47

(emphasis added). It is plausible that Mr. Billett’s use of the

phrase “you need to go back to the South where you came from,”

FAC, ECF No. 14 at 5 ¶ 46, was not benign when construing the

allegations in the light most favorable to Ms. Bynum, see Kowal,

. Indeed, “[t]he phrase ‘go back to where you

18 came from’ has a similar historical context to the term ‘boy.’”

McCurdy v. Auburn Univ., No. 3:14CV226-MHT WO,

,

at *5 (M.D. Ala. May 4, 2015) (analyzing failure-to-promote

claims under the same analytical framework for Title VII claims

and explaining that “[i]t would be unnatural phrasing, at best,

for a white manager to tell a black employee to ‘go back where

you came from’ and mean ‘return to your work in the

stockroom’”). The District does not offer a more likely

explanation that challenges the inference that the phrase “you

need to go back to the South where you came from” is a racially-

tinged comment. See Iqbal,

.

b. The Court Reasonably Infers From the Alleged Facts That Ms. Bynum Opposed Mr. Billett’s Discriminatory Conduct

Viewing the factual allegations as a whole, the Court can

draw a reasonable inference from the alleged facts that

Ms. Bynum opposed what she perceived as racial discrimination

when she reported Mr. Billett’s conduct to her supervisor. See

FAC, ECF No. 14 at 3 ¶ 6, 5-6 ¶¶ 40-68, 10 ¶ 105, 11 ¶¶ 119-121.

The “opposition clause” in Title VII’s anti-retaliation

provision makes it “‘an unlawful employment practice for an

employer to discriminate against any of his employees . . .

because he has opposed any practice made an unlawful employment

practice by this subchapter.’” Crawford v. Metro. Gov’t of

Nashville & Davidson Cty., Tenn.,

(2009)

19 (quoting 42 U.S.C. § 2000e–3(a)). In Crawford, the Supreme Court

explained that the ordinary meaning of the term “oppose” is

“[t]o resist or antagonize . . .; to contend against; to

confront; resist; withstand.”

(citation

omitted). “An employee’s opposition to an employment practice is

protected under Title VII when the employee ‘reasonably and in

good faith believed [the practice] was unlawful under the

statute.’” Grosdidier v. Broad. Bd. of Governors, Chairman,

(D.C. Cir. 2013) (quoting McGrath v. Clinton,

(D.C. Cir. 2012)); see also Lott v. Not-for-

Profit Hosp. Corp.,

(D.D.C. 2018) (“The

employee’s ‘belief’ that the employer’s conduct was unlawful

need not be certain.”).

In this case, Magistrate Judge Meriweather found that

“Mr. Bynum has failed to plead sufficient facts to satisfy even

[the] modest threshold” that oppositional conduct is not

onerous. R & R, ECF No. 20 at 8. Magistrate Judge Meriweather

found that Ms. Bynum did not allege that she believed that

Mr. Billett’s conduct was discriminatory.

To support the

conclusion that Ms. Bynum’s operative complaint fails to indicate

that she complained about discriminatory conduct when she reported

Mr. Billett’s conduct, Magistrate Judge Meriweather cited Peters

v. District of Columbia,

(D.D.C. 2012) and

Moore v. Office of the Architect of the Capitol,

(D.D.C. 2011). R & R, ECF No. 20 at 8-9. Peters and Moore

are distinguishable from this case.

In Peters, the court found that the informal complaints of two

African-American employees to management did not constitute

protected activity.

. The plaintiffs

complained about a supervisor “assigning them too many cases and

then penalizing them for a backlog when other caseworkers were not

penalized.”

The court reasoned that “[w]hile informal

complaints to management may constitute protected activity, the

plaintiffs must clearly complain about discriminatory treatment.”

The court explained that the plaintiffs did “not allege that

they complained about being targeted for [the] harsher treatment

due to their race, age or national origin or even in retaliation

for their prior complaints about her.”

In Moore, a white male employee alleged that he was unlawfully

terminated in retaliation for “opposing defendant’s refusal to

accept ‘Outstanding’ ratings on performance evaluations for two

white men over the age of forty and a Guatemalan man over the age

of forty.”

. The court found that the

plaintiff “failed to allege that he ever communicated to his

supervisors that he was opposing what he believed to be

discriminatory conduct by them” because he “never told his

supervisors that he believed their rejection of his ‘Outstanding’

ratings was the result of discrimination based on race, age, or

nationality.” Id. at 257. The court further explained that the

21 plaintiff “concede[d] that he was silent as to his opposition to

defendant’s allegedly discriminatory practices.” Id.

Unlike the plaintiffs’ informal complaints in Peters,

, Ms. Bynum filed an incident report, intended to

report the incident to the police, reported Mr. Billet’s “assault”

to her supervisor, and requested that DBH order Mr. Billett to not

harass, intimidate or annoy her following the “attack.” See FAC,

ECF No. 14 at 6 ¶¶ 57-59, 7 ¶ 69, 10 ¶¶ 104-105. And, unlike the

white male employee in Moore who conceded that he was silent as to

his opposition to his employer’s allegedly discriminatory

practices, see

, Ms. Bynum does not concede

that she was silent in opposing Mr. Billett’s epithets and his

behavior. Here, the operative complaint contains factual

allegations that support the inference that Ms. Bynum complained

to her supervisor that Mr. Billett’s words and actions were

discriminatory based on her race. See FAC, ECF No. 14 at 5 ¶¶

43-48, 6 ¶¶ 59-60, 7 ¶ 69, 10 ¶¶ 104-105, 11 ¶ 121. After she

received medical assistance for the incident at issue, Ms. Bynum

alleges that she returned to work on May 9, 2016.

at 6 ¶¶

61-63. On that same day, Ms. Bynum filed an EEOC charge of

discrimination.

at 8 ¶ 92.

Ms. Bynum’s opposition of Mr. Billet’s alleged

discriminatory conduct is similar to the plaintiff’s opposition

of discrimination in Bryant v. Pepco,

, 31

22 (D.D.C. 2010). In Bryant, the plaintiff alleged that his

attendance at two informal meetings between management and other

African-American employees about the lack of overtime

compensation opportunities for them constituted protected

activity under Title VII.

. In rejecting the

defendant’s argument that the plaintiff had to allege that “he

said something at [those] meetings or that he did something more

than merely attend,” the court explained that the plaintiff

“specifically allege[d] that the particular meetings he attended

concerned allegations of racial discrimination” and that “his

attendance at them certainly could be viewed by his supervisors

as opposition to what he perceived as [the defendant’s]

discrimination against him and other [African-American

employees].”

.

Like the plaintiff’s attendance at the meetings in Bryant,

Ms. Bynum’s actions of filing the incident report and reporting

the incident to her supervisor can be viewed by DBH as

opposition to what Ms. Bynum perceived as racial discrimination

given that it is plausible Mr. Billett’s comments were racial

epithets. See FAC, ECF No. 14 at 6 ¶ 59, 10 ¶¶ 104-105. The

alleged facts in this case present a stronger case than in

Bryant. Ms. Bynum alleges that Mr. Billett repeated “epithets”

several times during the incident at issue,

at 5 ¶ 47; she

reported Mr. Billett’s “attack” to her supervisor,

at 10 ¶¶

23 104-105; she filed an incident report,

at 6 ¶ 59; and she

“asked [DBH] to order [Mr.] Billett not to harass, intimidate or

annoy [her],”

at 7 ¶ 69. Viewing the factual allegations as

a whole, the Court can draw a reasonable inference from the

alleged facts that Ms. Bynum opposed what she perceived as

racial discrimination at DBH when she reported Mr. Billett’s

conduct to her supervisor. See

at 3 ¶ 6, 5-6 ¶¶ 40-60, 10 ¶¶

104-105, 11 ¶¶ 119-121.

Although Ms. Bynum does not use the exact words that she

“believed” that Mr. Billett’s conduct was discriminatory in the

operative complaint, R & R, ECF No. 20 at 8, the United States

Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”) has made clear that “no ‘magic words’ are required,”

Broderick v. Donaldson,

(D.C. Cir. 2006). The

D.C. Circuit has instructed that “the complaint must in some way

allege unlawful discrimination, not just frustrated ambition.”

Ms. Bynum has alleged more than “just frustrated ambition” based

on the alleged facts that she opposed Mr. Billett’s epithets at

DBH. See

Ms. Bynum specifically alleges that Mr. Billett

shouted, among other things, that she needed to “go back to the

South where [she] came from.” FAC, ECF No. 14 at 5 ¶ 46. As

previously explained, Mr. Billett’s use of that phrase may

demonstrate racial animus based on multiple factors, including

the phrase’s historical usage, its context, Mr. Billett’s

24 inflection, and his tone of voice. See Ash,

(explaining that modifiers or qualifications of racially neutral

words are not necessary in every circumstance to render the word

probative of bias). Mr. Billett’s epithets targeted at

Ms. Bynum, an African-American woman, support the reasonable

inference that she reasonably believed Mr. Billett’s conduct was

racially discriminatory when she reported the incident to her

supervisor. The Court therefore finds that Ms. Bynum has alleged

sufficient facts to give rise to a reasonable inference of

retaliation under Title VII. Accordingly, the Court rejects the

R & R’s recommendation to dismiss without prejudice Ms. Bynum’s

retaliation claim, and DENIES the District’s Partial Motion to

Dismiss as to Count II.

C. Hostile Work Environment Claim

The Court next turns to Ms. Bynum’s harassment claim in

Count IV, which the R & R correctly construes as a hostile work

environment claim. See, e.g., R & R, ECF No. 20 at 11 (citing

Knight v. Mabus,

(D.D.C. 2015)); FAC,

ECF No. 14 at 14 ¶¶ 147-48; Pl.’s Objs., ECF No. 22 at 9-12.

To state a hostile work environment claim, Ms. Bynum must

show:

(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment occurred because of the plaintiff’s protected status; (4) the harassment affected a term, condition, or

25 privilege of employment; and (5) the employer knew or should have known of the harassment in question but nonetheless failed to either take steps to prevent it or afford the plaintiff prompt remedial action.

Gordon v. Beers,

(D.D.C. 2013). “Although

a plaintiff need not plead a prima facie case of hostile work

environment in the complaint, the alleged facts must support

such a claim.” McKeithan v. Boarman,

(D.D.C. 2011) (citation and internal quotation marks omitted).

Ms. Bynum must allege that her “employer subjected [her] to

discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of

[her] employment and create an abusive working environment.”

Baloch v. Kempthorne,

(D.C. Cir. 2008)

(citations and internal quotation marks omitted).

Here, Count IV alleges that Ms. Bynum was “harassed” at DBH

in three ways: (1) “[b]y permitting [Mr.] Billet[t] to denigrate

[Ms. Bynum] for more than ten minutes in a small meeting room,”

FAC, ECF No. 14 at 14 ¶ 145; (2) “[b]y permitting

[Mr.] Billet[t] to stalk [her] while she worked,”

at 14 ¶

146; and (3) “[b]y threatening [her] with sanctions, including

termination of employment, without just cause,”

at 14 ¶ 149.

Count IV asserts that Ms. Bynum was subjected to an “abusive

work environment” at DBH in two ways: (1) “[b]y refusing to move

[Ms. Bynum] to an area or a new assignment where she could avoid

26 unnecessary contact with [Mr.] Billet[t],”

at 14 ¶ 147; and

(2) “[b]y issuing [Ms. Bynum] a warning/reprimand letter,”

at 14 ¶ 148. Count IV “adopts and incorporates all of the

[previous] allegations into [the hostile work environment]

claim.”

at 14 ¶ 144.

Magistrate Judge Meriweather recommends that Count IV be

dismissed without prejudice because Ms. Bynum has failed to

allege facts to support the third element of the hostile work

environment claim: the alleged harassment occurred because of

Ms. Bynum’s protected status. R & R, ECF No. 20 at 13.

Magistrate Judge Meriweather recognized that Ms. Bynum, an

African-American woman, is a member of two protected classes.

at 11 (citing 42 U.S.C. § 2000e-2(a)(1)). But Magistrate

Judge Meriweather refused to “simply assume that . . . a

connection [between the alleged harassment and Ms. Bynum’s race

or sex] exists.” Id. at 11-12 (collecting cases). Magistrate

Judge Meriweather disagreed with Ms. Bynum’s argument that the

operative “complaint’s incorporation by reference of allegations

made earlier in the complaint . . . purportedly demonstrate that

she was ‘harassed . . . in numerous ways in connection with her

protected activity.’” Id. at 12 (quoting Pl.’s Opp’n, ECF No. 17

at 11). In considering Ms. Bynum’s cited allegations, Magistrate

Judge Meriweather found that none of them “establish a basis to

infer that the alleged harassment at issue in Count IV was based

27 on her race or sex.” Id.; see also FAC, ECF No. 14 at 4 ¶¶ 24-

27, 4 ¶¶ 29-32, 5 ¶¶ 44-48, 6-7 ¶¶ 68-74, 7-8 ¶¶ 79-90.

Magistrate Judge Meriweather found that Ms. Bynum fails to

“connect the alleged harassment to her race or sex” because she

does not “articulate any reason—discriminatory or otherwise—for

the alleged harassment.” R & R, ECF No. 20 at 13.

Ms. Bynum argues that the R & R disregards the previous

factual allegations in the operative complaint that were

incorporated in Count IV. Pl.’s Objs., ECF No. 22 at 9-10. To

support her objection, Ms. Bynum points to: (1) her EEOC charge

of discrimination “in response to the harassment that was

inflicted upon her by [Mr.] Billet[t] and [DBH],” id. at 10

(citing FAC, ECF No. 14 at 8 ¶ 92); (2) her averment that the

“retaliatory actions of [DBH] were proximate to [her] protected

activity,” id. (citing FAC, ECF No. 14 at 10 ¶ 109); and (3) her

allegation that DBH’s “motivation was to retaliate against [her]

for . . . engaging in protected activity,” id. (citing FAC, ECF

No. 14 at 11 ¶ 119). Ms. Bynum argues that the operative

complaint alleges that DBH engaged in discrimination based on

her race, sex, and disability. Id. Ms. Bynum contends that the

allegations placed the District on “notice that [Mr.] Billett

and Dr. Wright were engaging in conduct that was proximately

related to [Ms. Bynum’s] numerous complaints of discrimination,”

which were “expressly based on [her] race and sex.” Id. at 11.

28 The District does not dispute that Ms. Bynum is a member of

two protected classes based on her race and sex. Def.’s Resp.,

ECF No. 24 at 3. Rather, the District argues that the operative

complaint does not contain facts either alleging or supporting

an inference that the alleged harassment occurred because of

Ms. Bynum’s race or gender. Id. at 3-4. The District contends

that neither Ms. Bynum’s EEOC charge of discrimination nor her

argument that DBH engaged in discrimination based on her race,

sex, and disability “save” her hostile work environment claim.

Id. at 4. The District further contends that “[a]llowing

[Ms. Bynum’s] claim to proceed on this conclusory allegation

would require the Court to impermissibly assume a link between

the claimed harassment and [her] membership in a protected

class.” Id. But, as explained below, a reasonable inference can

be drawn from the alleged facts, viewed as a whole, that

connects the alleged harassment and Ms. Bynum’s race.

1. The Court Reasonably Infers From the Alleged Facts That Ms. Bynum Was Harassed Because of Her Race

Ms. Bynum alleges that DBH created a hostile work

environment by: (1) permitting Mr. Billett to assault her on

March 29, 2016; (2) allowing Mr. Billett to stalk her while she

worked at DBH; (3) refusing to transfer her or assign her to a

different program area; and (4) threatening her with termination

or sanctions without just cause. FAC, ECF No. 14 at 5-6 ¶¶ 33-

29 59, 10 ¶ 111, 14 ¶¶ 145, 147, 149-51; see also R & R, ECF No. 20

at 10. These alleged events flow from Mr. Billett’s conduct on

March 29, 2016, and these allegations have a connection to the

alleged harassment because Mr. Billett allegedly shouted a

racially-tinged comment and epithets during the alleged assault

on the day of the incident at issue. See FAC, ECF No. 14 at 5 ¶¶

43-47, 6-7 ¶¶ 67-70, 14 ¶¶ 144-150.

Although the Court acknowledges that Ms. Bynum could have

stated her hostile work environment claim more artfully,

Ms. Bynum does allege facts from which a reasonable inference

can be drawn that the post-assault harassment occurred because

of Ms. Bynum’s race. The alleged facts, however, do not support

an inference that the alleged hostility is linked to Ms. Bynum’s

sex. The Court declines to adopt the R & R’s conclusion that the

alleged facts do not connect the alleged harassment to

Ms. Bynum’s race, but adopts the conclusion that the alleged

facts fail to connect the alleged harassment to her sex. See

R & R, ECF No. 20 at 13.

2. Ms. Bynum’s Allegations Are Sufficient to State a Hostile Work Environment Claim

Having found that a reasonable inference can be drawn from

the alleged facts that the alleged hostility occurred because of

Ms. Bynum’s race, the Court next considers whether the alleged

harassment is “sufficiently severe or pervasive to alter the

30 conditions of [Ms. Bynum’s] employment and create an abusive

working environment.” Baloch,

. The Court must

evaluate “the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work

performance.” Id.; see also Baird,

(“A hostile

environment consists of several individual acts that ‘may not be

actionable on [their] own’ but become actionable due to their

‘cumulative effect.’” (quoting Nat’l R.R. Passenger Corp. v.

Morgan,

(2002)). Here, Ms. Bynum’s alleged

incidents of harassment are sufficient to state a hostile work

environment claim. See FAC, ECF No. 14 at 5-6 ¶¶ 43-68, 7 ¶¶ 69-

82, 8 ¶¶ 83-94, 14 ¶¶ 144-151.

To begin, “isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the ‘terms and

conditions of employment.’” Faragher v. City of Boca Raton,

(1998) (emphasis added); see also Boyer-Liberto v.

Fontainebleau Corp.,

(4th Cir. 2015) (holding

that a jury could find the “uses of the ‘porch monkey’ epithet—

whether viewed as a single incident or as a pair of discrete

instances of harassment—were severe enough to engender a hostile

work environment”). In George v. Leavitt,

, 416–17

(D.C. Cir. 2005), the D.C. Circuit held that statements by three

employees over a six-month period telling a plaintiff to “go

31 back where she came from,” separate acts of yelling and

hostility, and allegations that the plaintiff was not given the

type of work she deserved, were isolated instances that did not

rise to the level of severity necessary to find a hostile work

environment. Seven years later, however, the D.C. Circuit

recognized that the “single incident [of using the n-word] might

well have been sufficient to establish a hostile work

environment.” Ayissi-Etoh v. Fannie Mae,

(D.C.

Cir. 2013) (per curiam);

(Kavanaugh, J., concurring)

(“[I]n my view, being called the n-word by a supervisor—as

[plaintiff] alleges happened to him—suffices by itself to

establish a racially hostile work environment.”).

In Ayissi-Etoh, an African-American employee brought

various claims against his employer, including a hostile work

environment claim under

.

. 5 The

plaintiff alleged that, after receiving a promotion, but being

denied a salary increase, his manager told him: “For a young

black man smart like you, we are happy to have your expertise; I

think I’m already paying you a lot of money.”

The plaintiff

also alleged that the vice president, on a separate occasion,

shouted at him to “get out of my office nigger.”

The

5 Courts analyze hostile work environment claims under Section 1981 and Title VII using the same analytical framework. See Sparrow v. United Air Lines, Inc.,

, 1114 n.3 (D.C. Cir. 2000). 32 plaintiff filed an EEOC complaint, his supervisor allegedly

instructed him to either “drop the racial discrimination claim

or be fired,” and the plaintiff was later terminated.

The D.C. Circuit held that the district court erred by

granting summary judgment to the employer on the hostile work

environment claim, concluding that “a reasonable jury could find

[the manager’s] and [vice president’s] behavior sufficiently

severe or pervasive as to create a hostile work environment.”

Id. at 577. The D.C. Circuit reasoned that the use of the n-word

alone might have been sufficient to establish a hostile work

environment claim, but the plaintiff alleged more than the

“deeply offensive racial epithet.” Id. The plaintiff also

alleged: (1) the “young black man” statement; (2) the plaintiff

“having to continue working with [the manager] for nearly three

months, until [the manager] was ultimately fired”; and (3) the

plaintiff being forced to continue working with the manager

“made [the plaintiff] ill and caused him to miss work on at

least one occasion.” Id.

Like the plaintiff in Ayissi-Etoh who missed work and

became ill after being forced to work with the manager who used

the deeply offensive racial epithet, see id., Ms. Bynum alleges

that Mr. Billett’s behavior, including his alleged racially-

tinged comment to “go back to the South where you came from,”

resulted in her missing twenty-eight days of work, prompted her

33 to seek medical assistance, and caused her psychic injury, see

FAC, ECF No. 14 at 6 ¶¶ 61-66. According to Ms. Bynum, she

suffered emotional distress and a panic attack after the alleged

incident with Mr. Billett. Id. at 6 ¶¶ 52-53. As in Ayissi-Etoh,

Ms. Bynum alleges that she was forced to work in the program

area where Mr. Billett threatened her with “unnecessary

contact,” id. at 6 ¶ 68, and Mr. Billett “kept coming around[]

[her] desk” even after her multiple requests to DBH for a

transfer to an appropriate program area, id. at 7 ¶ 75.

At the motion to dismiss stage, Ms. Bynum’s allegations of

Mr. Billett’s behavior, the denial of her transfer request, the

warning, and the reprimand letter sufficiently support that

there was a significant level of offensiveness at DBH.

Construing Mr. Billett’s comments and the post-incident actions

in the light most favorable to Ms. Bynum as reflecting

discriminatory animus, cf. Ash,

, the Court can

infer that Mr. Billett’s conduct and Dr. Wright’s actions were

so extreme and pervasive that they altered the conditions of Ms.

Bynum’s employment, see Rodgers v. W.–S. Life Ins. Co.,

(7th Cir. 1993) (“Perhaps no single act can more

quickly alter the conditions of employment and create an abusive

working environment than the use of an unambiguously racial

epithet . . . by a supervisor in the presence of his

subordinates.” (citation and internal quotation marks omitted)).

34 Ms. Bynum alleges that Mr. Billett’s presence near workspace her

after the incident was stressful, intimidating, and annoying.

FAC, ECF No. 14 at 7 ¶¶ 69, 77. Indeed, Ms. Bynum alleges that

the actions that occurred on the day of the incident and on the

day that she received the warning and reprimand caused her to

“relapse in her mental health treatment.”

at 8 ¶ 90. DBH

allegedly did nothing in response to the alleged harassment. See

at 14 ¶ 146. The Court therefore finds that Ms. Bynum’s

hostile work environment claim passes muster. Cf. Ayissi-Etoh,

. Accordingly, the Court DENIES the District’s

Partial Motion to Dismiss as to Count IV. 6

IV. Conclusion

For the reasons set forth above, the Court ADOPTS IN PART

and REJECTS IN PART the R & R, GRANTS IN PART and DENIES IN PART

the District’s Partial Motion to Dismiss, DISMISSES WITHOUT

PREJUDICE Ms. Bynum’s retaliation claim under the ADA, and

DISMISSES WITH PREJUDICE Ms. Bynum’s claims against DBH. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge January 30, 2020

6 Having found that Ms. Bynum’s Title VII claims survive the District’s partial motion to dismiss, the Court need not address Ms. Bynum’s request for leave to amend the operative complaint pursuant to Federal Rule of Civil Procedure 15. See Pl.’s Objs., ECF No. 22 at 9, 11. 35